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Nottingham v Ardern

Nottingham v Ardern

Case [2020] NZCA 144 1 May 2020

Jurisdiction

Standing

Detention

Habeas Corpus Act 2001

Open Justice

Interim Name Suppression

Constitutional Law

Administrative Law

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ORDER CONTINUING INTERIM NAME SUPPRESSION OF APPELLANTS UNTIL 4.00 PM ON 8 MAY 2020 OR SUCH OTHER DATE AS MAY BE ORDERED BY THE SUPREME COURT.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA218/2020 [2020] NZCA 144

BETWEEN
DERMOT GREGORY NOTTINGHAM AND ROBERT EARLE MCKINNEY

Appellants

AND

JACINDA ARDERN, ASHLEY BLOOMFIELD AND SARAH STUART- BLACK

Respondents

Hearing: 1 May 2020

Court:

Kós P, French and Collins JJ

Counsel:

Appellants in person

A M Powell and V McCall for Respondents

Judgment:

1 May 2020 at 4.00 pm

Reasons:

4 May 2020 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeals are dismissed.
BOrder continuing interim name suppression until 4.00 pm on 8 May 2020 or such other date as may be ordered by the Supreme Court.
CThere is no order for costs.

NOTTINGHAM v ARDERN [2020] NZCA 144 [4 May 2020]

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] Mr Nottingham and Mr McKinney allege that the New Zealand Government’s response to COVID-19 has subjected them to unlawful detention. Two general questions are addressed in this judgment:

(a)Did the High Court err when it declined to issue writs of habeas corpus in favour of Mr Nottingham and Mr McKinney?1

(b)Did the High Court err when it declined applications for interim name suppression by Mr Nottingham and Mr McKinney in relation to their proceedings?

[2]Two sub-issues are raised under the question posed in [1(a)]:

(a)are Mr Nottingham and Mr McKinney detained within the meaning of that term in the Habeas Corpus Act 2001 (the Act); and, if so

(b)is habeas corpus the appropriate procedure for considering the allegations made by Mr Nottingham and Mr McKinney?

[3] On 1 May 2020 we heard and determined the appeal by answering in the negative the two questions posed in [1]. We now provide the reasons for our decision.

Key measures taken by the Government in response to COVID-19

[4] The following are the key measures taken by the Government in response to the threats posed by the COVID-19 pandemic that are relevant to the issues raised by the appeals.

1 A v Ardern [2020] NZHC 796; and B v Ardern [2020] NZHC 814.

[5] On 11 March 2020, COVID-19 was added to the lists of notifiable infectious diseases and quarantinable infectious diseases in the Health Act 1956.2

[6] On 21 March 2020, the Prime Minister announced New Zealand’s four-stage alert system for responding to the COVID-19 pandemic. Two days later, the Prime Minister explained New Zealand had moved to COVID-19 Alert Level 3 and that on 25 March 2020, the country would be placed into the most restrictive level, COVID-19 Alert Level 4.

[7] The Government took a number of measures to implement its response to the pandemic, including:

(a)On 25 March 2020, the Government issued an Epidemic Notice under s 5 of the Epidemic Preparedness Act 2006.3

(b)On 25 March 2020, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nottingham v Ardern

Details

AGLC: Nottingham v Ardern [2020] NZCA 144
Case: [2020] NZCA 144
Decision Date: 1 May 2020 at 4.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal brought by Dermot Gregory Nottingham and Robert Earle McKinney against the New Zealand Government's response to the COVID-19 pandemic. The appellants alleged that the Government's measures had subjected them to unlawful detention and sought writs of habeas corpus. The Court had to determine whether the High Court was correct in declining to issue the writs and in denying the appellants' applications for interim name suppression. The appeal raised two main issues: whether the appellants were detained within the meaning of the Habeas Corpus Act 2001 and whether habeas corpus was the appropriate procedure to consider their allegations.

The Court found that the appellants were not detained for the purposes of the Act, as the restrictions on their movements did not constitute a restraint of their liberty. The Court concluded that detention under the Act requires holding a person in close custody or in a similarly restrictive environment not shared by the public generally. Furthermore, the Court held that habeas corpus was not the appropriate procedure for considering the appellants' allegations, as it could not address the complex legal issues related to the lawfulness of the notices issued under s 70 of the Health Act 1956. The Court emphasised that an expedited application for judicial review seeking declarations in the High Court would be the appropriate procedure in this case.

The Court dismissed the appeals and denied the applications for name suppression, as there was no factual basis to conclude that the appellants would suffer physical harm if the public knew they initiated these proceedings. The Court noted that the principle of open justice, which requires parties in civil proceedings to be identified, was not outweighed by the appellants' concerns in this case.

The Court ordered that the existing interim name suppression orders could continue until 4.00 pm on 8 May 2020 or such other time as the Supreme Court may determine. The Court also noted that the appellants should refer to the respondents by the office they hold or by naming the Attorney-General as the respondent if the matter proceeds further.

Orders